The Issue The issue presented here concerns the jurisdiction of the Respondent State of Florida, Department of Health and Rehabilitative Services, to pass on the issue of whether the Petitioner, John Jackson, meets the definition of sex offender within the meaning of Chapter 917, Florida Statutes; it having been determined that the Department has exhausted all treatment for the Petitioner. Secondarily, this Recommended Order considers the question of whether the Petitioner can, through the process of this administrative hearing, controvert the clinical summary dated October 13, 1980, by challenging the findings of that report, even if it has been determined that the Department has exhausted all treatment for the Petitioner and the Department is without jurisdiction to enter a final order on the question of whether the Petitioner meets the definition of sex offender within the meaning of Chapter 917, Florida Statutes. Of particular interest on the secondary issue is that part of the report which indicates that the Petitioner still meets the definition of sex offender.
Findings Of Fact The Petitioner submitted a "Petition for Administrative Determination" to the State of Florida, Department of Health and Rehabilitative Services. In turn, the Department requested the Division of Administrative Hearings to conduct a formal hearing to consider the matters set forth in the Petition and this request was received by the Division of Administrative Hearings on January 5, 1981. Specifically, the Petition asked that a Subsection 120.57(1), Florida Statutes, hearing be conducted to consider the question of whether the Respondent State of Florida, Department of Health and Rehabilitative Services has exhausted all appropriate treatment for the Petitioner John Jackson, who was enrolled in one of the Respondent's sex offender programs at Florida State Hospital, Chattahoochee, Florida. The prayer for relief offered by the Petitioner was in keeping with the language of Section 917.20, Florida Statutes (1977), which states: . . . if the department returns an offender to the court because the department has determined that it has exhausted all treatment of the offender, the court shall remove the offender from the custody of the department. A continuance of the formal hearing scheduled for January 30, 1981, was granted and the final hearing was eventually held on March 3, 1981. At the commencement of the hearing, counsel for the Petitioner promoted a substantial change to the Petitioner's claim for relief. That change was one which conceded the dispute fashioned in the details of the "Petition for Administrative Hearing," in that the Petitioner and Respondent agree that the Respondent had exhausted all appropriate treatment for the Petitioner through the programs for sex offenders offered in the State of Florida. The Petitioner then attempted to amend his Petition to request that a final order be entered by the Secretary, Department of Health and Rehabilitative Services which decided if the Petitioner continued to meet the definition of sex offender found in Chapter 917, Florida Statutes. Additionally, the Petitioner, in the person of his counsel, attempted to amend the Petition to attack the details of the staff report of October 13, 1980, dealing with the status of the Petitioner's condition with particular emphasis on the finding that Jackson continued to he a sex offender. The Respondent was opposed to the amendment on the ground of lack of jurisdiction on the part of the Respondent to consider these claims, it having been determined that the Respondent had exhausted treatment for the Petitioner and moreover, the Respondent objected to the change in the Petition which did not grant the Respondent sufficient notice to prepare to defend against the accusations. The Respondent's position was found to be meritorious and the reasons for that decision will be discussed in the Conclusions of Law section of this Recommended Order.
The Issue Whether Petitioner should be granted the exemption from disqualification from employment that she is seeking.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: In 1975, when she was 36 years of age, Petitioner was dating a married man. When the man's wife found out about her husband's extramarital affair, she began to harass Petitioner and members of Petitioner's family. On March 4, 1975, Petitioner was sitting in her vehicle with her then 17-year old son in the driveway of her home. She was about to leave to take her son to work when her boyfriend's wife drove up and blocked the driveway. Petitioner's son got out of the car and asked the wife to move her vehicle. The wife responded by making what Petitioner perceived to be an "ugly" gesture that was directed to Petitioner's son. Petitioner reacted in anger to the wife's response. She exited her vehicle and physically attacked the wife, bloodying the wife's nose. Police officers arrived on the scene and arrested Petitioner. Petitioner was charged with, and on April 22, 1975, convicted of, aggravated assault as a result of this March 4, 1975, incident. As punishment for committing this crime, she was directed to pay a $50.00 fine and court costs. Petitioner recognizes that her physically aggressive behavior on March 4, 1975, was inappropriate. She is remorseful and repentant. Petitioner has not committed any similar unlawful acts of violence in the more than 22 years since the March 4, 1975, incident. In 1980, Petitioner was arrested and charged with two counts of resisting a law enforcement officer without violence after she had intervened in an altercation involving her son and several police officers, but the charges against her were ultimately dismissed. Petitioner is a certified nursing assistant. She began working as nursing assistant approximately 30 years ago. As a nursing assistant, Petitioner has assisted individuals (in their homes and in institutional settings) needing help in performing their activities of daily living. She has provided such assistance without incident, notwithstanding that she has had to care for some individuals who have been quite difficult, including certain residents of South Florida State Hospital, a state-operated mental health facility, where she worked from 1981 through 1991 (as an employee of two different private nursing agencies with whom the hospital had contracted to provide nursing assistant services) and from January 24, 1997, to July 23, 1997 (as an employee of the hospital).2 There were occasions during the time she worked at South Florida State Hospital that residents would become physically aggressive toward her. On these occasions, Petitioner reacted, not in kind, but rather with restraint and in a professional manner. On July 23, 1997, after a background screening investigation conducted by the Department had revealed that she was not qualified to serve in her position at South Florida State because of her 1975 conviction for aggravated assault, and following the Department's preliminary denial of her request for an exemption from such disqualification, Petitioner was terminated from her position at the hospital. Petitioner has been unemployed since July 23, 1997. Although she has been unable to find work as a nursing assistant, Petitioner still continues to perform nursing assistant services (without compensation) for her elderly aunt, for whom she has cared for the past five years. Based upon Petitioner's history since the March 4, 1975, incident that led to her arrest and conviction for aggravated assault, it appears that she has rehabilitated herself and that she will not present a danger if her exemption request is granted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order granting the exemption that Petitioner has requested. DONE AND ENTERED this 22nd day of October, 1997, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 1997.
The Issue This cause came on for consideration before the Hearing Officer on Respondent's motion to dismiss this proceeding for lack of jurisdiction. Specifically, Respondent asserts that Petitioner lacks standing to maintain this proceeding pursuant to Section 120.57(1), Florida Statutes, asserting that Petitioner is net a "party" within the meaning of Section 120.52 (10) Id), Florida Statutes.
Findings Of Fact On May 28, 1980, Petitioner, Charles E. Roberts, Jr., pleaded guilty to a lewd and lascivious act in violation of Section 800.04, Florida Statutes. His conviction occurred in Case No. 79-9480B, in the Circuit Court of the Thirteenth Judicial Circuit, in and for Hillsborough County, Florida. Thereafter, on May 30, 1980, Petitioner was adjudged guilty and sentenced to five years in the State prison system. Subsequently, Petitioner, in keeping with the terms and conditions of Section 917.012, Florida Statutes, was evaluated by the State of Florida, Department of Corrections, and the State of Florida, Department of Health and Rehabilitative Services, and was placed in the mentally disordered sex offender program at Florida State Hospital, Chattahoochee, Florida, by transfer from his confinement in the prison system to Florida State Hospital. At the time of the hearing in this cause, Petitioner was in residence at Florida State Hospital awaiting transfer back to the State prison system. By this proceeding, Petitioner seeks to contest Respondent's determination that all appropriate treatment modes for Petitioner have been exhausted.
The Issue The issue in this case is whether Petitioner, John Harris, should be granted an exemption from disqualification from employment pursuant to Chapter 435, Florida Statutes.
Findings Of Fact Petitioner, John Harris, was employed at the Florida State Hospital in Chattahoochee, Florida, from October 1977 to January 15, 1998. The Florida State Hospital is a residential facility for mentally ill adults. Mr. Harris was employed as a Unit Treatment and Rehabilitation Specialist. Mr. Harris was involved in the provision of direct care to residents of Florida State Hospital. During 1997 the Department of Children and Family Services (hereinafter referred to as the "Department") pursuant to Chapter 435, Florida Statutes, conducted background screening of employees involved in the provision of direct care to residents of Florida State Hospital. As a result of a background screening check of Mr. Harris, it was determined that Mr. Harris had pled nolo contendere to possession of cocaine, a felony pursuant to Chapter 893, Florida Statutes, in 1989. As a result of the determination that Mr. Harris had pled nolo contendere to a felony under Chapter 893, Florida Statutes, Mr. Harris was notified by the Department that he was disqualified from employment in his position with Florida State Hospital. The following are the pertinent facts concerning the 1989 nolo contendere plea: During the afternoon of September 11, 1989, Mr. Harris was traveling by automobile from Tallahassee, Florida, where he had picked up the automobile from his wife, to Quincy, Florida, where he lived; Mr. Harris was traveling at a speed of 100mph while being chased by law enforcement. He was stopped by other law enforcement personnel waiting for him just outside Quincy; The automobile that Mr. Harris was driving was searched and cocaine was discovered; Mr. Harris was charged with possession of a controlled substance in violation of Chapter 893, Florida Statutes, and reckless driving in violation of Chapter 316, Florida Statutes; Mr. Harris pled nolo contendere to the charge of possession of cocaine, a felony, and was adjudicated guilty of the offense on or about February 21, 1990; and Mr. Harris was sentenced to probation for a period of one year. Although not listed in the letter informing Mr. Harris of the results of his background screening, Mr. Harris also was charged and pled nolo contendere to the offense of possession of cocaine with intent to sell in 1981 and driving under the influence of alcohol and possession of cannabis in 1995. The following are the only pertinent facts concerning the 1981 offense offered at hearing: On or about May 24, 1982, Mr. Harris pled nolo contendere to possession with intent to sell cocaine in violation of Chapter 893, Florida Statutes, a second degree felony, as a result of an incident that took place in 1981; and Mr. Harris was adjudicated guilty and was sentenced to probation for a period of eight years. The following are the pertinent facts concerning the 1995 offenses for driving under the influence of alcohol and possession of cannabis: Mr. Harris was driving an automobile in or near Bainbridge, Georgia, when he was stopped by law enforcement; Mr. Harris was charged with driving under the influence of alcohol and possession of cannabis that was found in the glove compartment of the automobile; Mr. Harris was adjudicated guilty of both offenses; and Mr. Harris was sentenced to probation for a period of one year and a number of week-ends in jail. At the time of the formal hearing Mr. Harris was 44 years of age. Mr. Harris' immediate supervisor, Rollean Lloyd (Ms. Lloyd indicated at the hearing that her first name is spelled "Rollean") testified at the formal hearing in support of Mr. Harris' continued employment at Florida State Hospital. Ms. Lloyd also signed a letter (Ms. Lloyd's first name is spelled "Rollene" on the letter) supporting his continued employment at Florida State Hospital. Ms. Lloyd's supervisor also testified at the formal hearing and signed a letter supporting his continued employment at Florida State Hospital: I have known John Harris for approximately eight years as an employee of Unit 4, Florida State Hospital. I have observed Mr. Harris over this time and he had become a concientious [sic] worker who relates well to the residents and to the staff in Unit 4. His recent attendance record has been good and Mr. Harris performs his job to the best of his ability. Mr. Harris is cooperative with his supervisors and supportive of his co-workers. For the past eleven years Mr. Harris has been, and was at the time of the formal hearing, married to Ollie Harris. Mr. Harris has two sons, one twenty years of age and the other eighteen years of age.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department of Children and Family Services denying John Harris' request for an exemption from disqualification from employment pursuant to Section 435, Florida Statutes. DONE AND ENTERED this 29th day of May, 1998, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 1998. COPIES FURNISHED: Ben R. Patterson, Esquire Patterson and Traynham 315 Beard Street Post Office Box 4289 Tallahassee, Florida 32315-4289 John Perry, Esquire District 2 Legal Office Department of Children and Family Services 2639 North Monroe Street Tallahassee, Florida 32399-2949 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact On and after May 29, 1978, respondent Patricia Bose Haischer has been licensed by petitioner as a licensed practical nurse. She holds license No. 0482051. On May 1, 1981, an information was filed in the Circuit Court for the Sixth Judicial Circuit in Case No. CRC 8103052 CFANO (Pinellas County) charging respondent with "knowingly. . .commit[ting] a lewd and lascivious act in the presence of Yvonne Moir, a child under the age of fourteen years, by willfully and knowingly engaging in sexual activity in the presence of. . .Yvonne Moir. . .but without intent to commit sexual battery upon. . .Yvonne Moir." Petitioner's Exhibit No. 2. On her plea of guilty, respondent was adjudicated guilty of violating Section 800.04, Florida Statutes (1981), on August 19, 1981; and, on the same date, respondent was sentenced to twelve years' imprisonment. At the time of the hearing, respondent was confined at the Florida State Prison for Women. According to respondent's uncontroverted testimony, elicited in petitioner's case, she never fondled Yvonne Moir but was present and undressed while her husband had sexual intercourse with the child; she acted under the domination of her husband (who is now himself incarcerated for sex offenses) and was not altogether well emotionally at the time. Yvonne Moir was not in respondent's care as a nurse when these events transpired. Respondent's misbehavior evinced a disregard for Yvonne Moir's emotional health and reflects adversely on respondent's ability to practice nursing, for that reason. This opinion was expressed by a nurse with eighteen years' experience who testified for petitioner without objection from respondent. As a nurse, respondent has never harmed a patient or put a patient in jeopardy. She has had good recommendations from anybody who has ever supervised her, and one supervisor called her "trustworthy and dependable." During her imprisonment, respondent has visited a psychologist on a regular basis. She feels better and more confident about herself than she did at the time of the offense.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent suspend petitioner's license for two (2) years. DONE AND ENTERED this 20th day of April, 1982, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of April, 1982. COPIES FURNISHED: Patricia B. Haischer Box 202 F.C.I. Lowell, Florida 32663 William R. Furlow, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Helen P. Keefe, Executive Director Board of Nursing 111 East Coastline Drive, Room 504 Jacksonville, Florida 32202 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF NURSING IN RE: PATRICIA MARIE B. HAISCHER, L.P.N. CASE NO. 0017303 License No. 0482051 DOAH NO. 81-3149 /
